A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Chapter 10: Open Secrets
Michael J. Madison* I. INTRODUCTION Both inside and outside the thing that the law calls a ‘trade secret’ lie domains of open information exchange. Trade secrecy demands a corresponding openness precisely by virtue of the law’s requirement that the information may be protected as a trade secret provided that its secret status supplies its owner with economic value or a commercial advantage.1 That advantage necessarily comes via exchange with others. Perhaps the most famous and commercially successful trade secret in history, CocaCola’s formula for its classic soft drink, is the foundation of millions of dollars in sales to consumers worldwide. The commercial software industry likewise distributes products containing its trade secrets to millions of end-users annually. This Janus-like or two-faced character of trade secrets has long been an implicit feature of accounts of the law of trade secrets. The open character of trade secrets appears in accounts that analyse the doctrine in relational terms, when those accounts note that trade secrecy’s scope is usually limited to certain commercial or technical contexts. Information may be secret for purposes of interactions that are subject to special duties, such as those between employers and employees, and between business partners, but that same information may be accessible for other purposes, such as relations between a supplier and consumers, and between competitors. The latter groups ordinarily are entitled to access the secret, at least so long as they use ‘legitimate’ means. Openness also appears in accounts that focus on the thing-like character of the trade...
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.